Judicial Activities of the TCA : Turkish Court of Accounts

Judicial Activities of the TCA

The TCA performs its judicial activity in accordance with its duty to take the final decision on the accounts and transactions of those responsible.

In fact, Article 5 “Duties of the TCA” in the TCA Law defines the TCA’s duty for the account trials as follows: “The TCA shall audit whether or not accounts and transactions of public administrations within the scope of the general government with respect to their revenues, expenses and assets are in compliance with laws and other legal arrangements, and take final decision on matters related to public loss arising from the accounts and transactions of those responsible.”

Account trials are performed by the TCA chambers. There are eight chambers in the TCA. They are courts of accounts. They consist of a Chairperson and six Members. Trials are held with a Chairperson and four Members. The judgments and decisions are taken by the majority vote. As courts of accounts, the Chambers take the final decision on the matters included in the judicial reports prepared by the auditors and the supplementary judicial reports prepared by the auditors regarding the public loss detected during the audit of the public administrations within the scope of the general government.

Judicial Chambers

In the discussion of judicial reports, there is a judicial committee consisting of a Chairperson and four members, as well as the prosecutor and the TCA Auditors, who are assigned as Rapporteurs to prepare the decision, report, writ, and chamber opinion and carry out other actions required by these. In addition, if the committee deems it necessary, the head of the relevant group, the auditor who prepared the report, the responsible persons, and receivers may be called to make explanations, on the condition that a notification is made at least three days before the meeting day. Apart from this, the responsible persons and their legal representatives or proxies may request to attend the hearing, on the condition that they indicate this in their defense and/or petitions. If a hearing is requested, the relevant persons and their legal representatives or proxies (if any) are invited to the hearing. Receivers can attend the hearing as an auxiliary participant. However, they must submit their requests to the TCA with a petition and the Trial Chamber must accept this application. The Chamber listens to the explanations of those who come upon call or invitation. If none of them comes, the trial continues with the report. During the account trial, the prosecutor is also present and explains his opinion. The Chairperson of Chamber leads the meetings. The adequacy of the meetings is under the discretion of the Chairperson of Chamber. However, if the members want to continue the meetings to clarify the issue and if the Chairperson of the Chamber does not agree with this opinion, this matter is resolved by voting. If the majority deems it necessary to examine the issue in more depth, the Chairperson of Chamber leaves the meeting for another day. The same members attend the next meeting unless there is an obligation. The second meeting is held on the nearest date determined by the Chairperson of the Chamber. After the meetings are completed, voting is done by the Chairperson of the Chamber in order of seniority, starting with the most-junior member. Members are obliged to vote on every subject submitted to the vote; they cannot abstain. After the Chairperson of Chamber expresses his opinion, the discussion on that subject is over and the decision is taken.

Public Loss and Responsibility

According to Law No. 5018 on Public Financial Management and Control, public loss refers to decreasing or causing an obstacle to the increase of public resources as a result of unlawful decisions, operations or actions caused by the intention, fault or negligence of public officials. Those responsible and cases of responsibility are regulated by Article 7 of the TCA Law. According to this article, “With reference to those responsible and cases of responsibility in this Law, those responsible and cases of responsibility indicated in Law No. 5018 and other laws regarding the audit by Turkish Court of Accounts shall be taken into account”. The same article states that “Those assigned duties and vested with authorities for the acquisition and utilization of all types of public resources shall be responsible for their effective, economic and efficient acquisition, utilization, accounting and reporting as well as for taking necessary measures to prevent misuse of these resources” and “Cases where public loss is inflicted shall be resolved by taking final decision regarding the indemnity of this loss”. If decision is taken to compensate the loss, “Those responsible shall be obliged either separately or jointly to compensate the public loss stated in writs created by establishing the causality between the loss and their decisions, transactions or actions contrary to legislation.”

Judicial report

When auditors detect a matter causing public loss during the audit of the accounts and transactions of the public administrations within the scope of the general government, they receive the defense of the responsible persons by conducting an inquiry. Then, they prepare a report containing the inquiry, defense and auditor’s final opinion by the end of the fiscal year. The report is submitted to the Presidency with the enclosed documents until the end of November of the year following the relevant financial year, at the latest. The Presidency sends it to the Chamber, where the account trial will be held, within 15 days at the latest.

The Chairpersons of Chambers receive the written opinion of the Office of the Chief Prosecutor on the judicial reports submitted to their Chambers. Then, they submit the report containing the written opinion of the Office of the Chief Prosecutor to one of the Chamber Members for his/her opinion. The member examines the report given to him, and returns it to the Chamber with his written opinion. Upon completion of the other necessary procedures (such as preparing the agenda, summoning the relevant parties and inviting them to the hearing) for performing account trials, the Chambers take the final decision on the matters regarding public loss included in the judicial reports prepared regarding the accounts and transactions of those responsible. In this framework, it is not possible to perform an account trial without preparing a judicial report.

After the trial of judicial reports in the Chamber;

Decisions can be taken on the following:

Compliance of accounts and transactions with legal regulations,
Compensation of public loss from those responsible,
Since there is no public loss in relation to the accounts and transactions, there is no matter to be dealt with,
To notify the relevant authorities of the matters deemed necessary,

If decision is taken to compensate the public loss, the amount of compensation shown in the writs will be subject to legal interest from the date of decision and collected in accordance with the provisions of the Execution and Bankruptcy Law dated 9/6/1932 and numbered 2004.

Encountering a Criminal Act

Inquiries by auditors or decisions by Chambers do not make an observation regarding the crimes falling in the scope of the Turkish Penal Code, and do not take a decision in this direction. If a criminal act is encountered during audit or trial stages, the relevant auditor immediately identifies the evidence and reports the situation to the TCA according to Article 78 of the Law. If the first evidence collected in the examination carried out within 15 days by the Chamber appointed by the President of the TCA is deemed to require a public action, the file is given to the TCA Office of the Chief Prosecutor for necessary action, which is to be sent to the public administration to which the responsible persons are affiliated, or to the Public Prosecutor's Office for direct investigation, depending on the nature of the crime. However, apart from the criminal acts, the Chamber may also take the above-mentioned decisions on matters of public loss, or the decision of the Public Prosecutor's Office or the Court (in case of a lawsuit) may also be awaited.

Ineligible for Taking a Decision

During the account trial, information and documents related to a transaction (which is the subject of the account trial and for which documents are not available due to the fact that they were submitted to the courts or to the relevant administrative authorities for an ongoing investigation) can be deemed insufficient and it may be necessary to wait for the outcome of the investigation. In such cases, the trial of accounts and transactions regarding these matters are suspended and rendered ineligible. The trial of these accounts and transactions continues after the deficiencies regarding the excluded matters are eliminated,

Writs

The judgments and decisions are recorded in the minutes with their justifications and signed by the Chairperson of the Chamber and the Members in the committee. Decisions are announced by the writs prepared by the Rapporteurs in the TCA Chambers. These writs are notified to the responsible persons, the public administrations to which the responsible persons are affiliated, the Ministry of Finance for the public administrations within the scope of the general budget, the relevant accounting unit, and the Office of the Chief Prosecutor.

Writs, which are prepared with justifications, according to the minutes include the following:

Chamber and decision number, name of the relevant public administration or account, and audit period,
Names and surnames of the auditor who prepared the report, the prosecutor, and the rapporteur who wrote the writ,
Names and surnames, titles and addresses of those responsible, and if any, their proxies or representatives,
A summary of the issues that the auditor included in the report and their legal basis, the opinion of the prosecutor, the result of the request, and the summary of the defenses of those responsible,
Whether the hearing is held or not, and if so, the names and surnames of those present,
The legal basis and justification of the decision, the amount of compensation in cases where compensation is decided, the starting date of the interest to be applied, and the list of the receivers of the payment amounts,
Issues that have been cleared by collection, their receivers, and collection amounts,
If it is decided that the amounts collected upon inquiry are unduly collected, the date and number of the documents related to the collection, the names and surnames of the responsible and the receivers, and the reason for the return,
Matters that are deemed ineligible,
Date of the decision and whether its unanimous or majority vote, and dissenting opinion, if any,
Names, surnames and signatures of the chairperson and members of the chamber performing the account trial.

If the decisions taken by the TCA Chambers are ambiguous, each party may request their clarification, or they may request the correction of the names, surnames, titles of the parties, inaccuracies related to the outcome of the claims, and the calculation errors in the decision paragraph with a petition. The Chamber that takes the decision examines the matter and, if it deems necessary, notifies the other party with a copy of the petition to be answered within the time it will determine. The decision of the relevant Chamber on this matter is notified to the parties. Clarification or correction may be requested until the execution of the decision.

Writs, which are prepared after the decisions are taken by the TCA Chambers, become final with the decision of the TCA’s Board of Appeals if an appeal is made by relevant persons. If an appeal is not made or an application is not made within the time limit, the writ becomes final after the appeal period expires.

Writs, which are finalized with the end of the appeal period, must be fulfilled within 90 days. This obligation belongs to the senior manager of the public administration to which the writ is sent. During the fulfillment of this obligation, legal interest is charged for the compensation amounts from the date of the chamber decision (judgment).

Legal Remedies

Requests for appeal, retrial, and correction of decision are taken with a signed petition addressed to the Presidency of the TCA. Petitions are submitted or sent to the Presidency. If the interested parties wish, a receipt is given to them stating that the document has been received

Petitions include the following:

Name, surname, title, and address of the applicant, and if any, his legal representative or proxy.
The date and number of the writ.
Name and year of the relevant account.
Subject of the application.
Which legal remedy is sought and the legal reasons for the application.
Request for hearing, if any.

Relevant parties attach the necessary documents to prove their objections to the petitions. Petitions and copies of documents attached to them will be one more than the number of counterparties. If, according to its relevance, the Board of Appeal or the chamber decides that the petitions do not contain the above-mentioned issues, the petitioner is notified that the deficiencies should be completed within 15 days. If the deficiencies are not completed within this period, the Board of Appeal or the Chamber decides to reject the application, depending on its relevance. Petitions containing the records, which sufficiently indicate the applicant’s identity, signature, the writ decision which is the subject of application, and which legal remedy is sought and why, are accepted even if other matters are not shown.

Appeal

Writs prepared by the TCA chambers are appealed at the TCA’s Board of Appeals. Decisions taken by this Board are final.

The decisions of the TCA chambers may be appealed by those who are mentioned in the first paragraph of Article 52 for reasons such as:

Being unlawful,
Exceeding authority,
Not complying with the procedures of account trials.

The appeal period is 60 days from the notification of the decision to the relevant person. The petition of appeal and the enclosed documents are notified to the other party. The response period is 30 days from the notification. These replies are communicated to the appellant. The appellant replies within 15 days. These replies are also communicated to the other party. This will be answered within 15 days. After the replies are received or if one of the parties does not respond in due time, the appeal is reviewed and a decision is taken.

If the parties have stated in their petitions that they want a hearing, or if the Board of Appeal deems it necessary, it may invite the parties to listen to their defense and ask for clarifications. Responsible persons may make statements together with other relevant persons. The parties are called upon to speak twice. If only one of the parties comes, his/her explanations are heard. If none of them comes, the hearing is not opened, the examination is done with the documents.

The Board of Appeal approves the appealed decision as it is or by amending it, or it reverses the decision or cancels it with a two-thirds majority of the total number of members of the Board. In case of reversal, the document is sent to the chamber that has taken that decision for re-decision.

If the Chamber insists on its first decision and if this decision is appealed again, and if the Board of Appeal decides to reverse it, then the Chamber has to comply with this decision. The decisions of the Board of Appeal regarding the repeal of the compensation decision cover all those responsible in the writ, which is the subject of the appealed decision.

Retrial

The Ministry of Finance, the relevant accounting units, and the TCA Office of the Chief Prosecutor may request retrial for those responsible, the public administrations to which the responsible persons are affiliated, and the public administrations within the scope of the general budget, or the retrial may be decided directly by the TCA chambers.

The reasons for retrial are as follows:

There is a material error, name mistake or deficiency, omission or duplication in the account.
Forgery in a document that affected the decision.
An incorrect or irregular transaction, which was not seen during the audit or account trial, appears after the decision.
Some documents that may affect the decision, which were not found during the audit or account trial, appear after the decision.
A writ that form the basis of a decision is abolished by reversal.
It is revealed that the expert or expert has prepared a false report.

The period for requesting retrial is five years from the date of notification of the writ. Requesting a retrial does not prevent the execution of the writ. If the chamber examining the petition for retrial deems necessary, it may decide to delay the execution in return for a legally valid security. The request for retrial is examined by the chamber that has taken the decision. The chamber first decides whether to accept or reject the request for retrial. In case of an acceptance decision, an account trial is performed and it is limited to the items returned. The fact that the Parliament finalized the final account law proposal is not effective on personal debts.

Correcting the Decisions

Regarding the decisions of the Board of Appeal, the Ministry of Finance, the relevant accounting units, and the TCA Office of the Chief Prosecutor may request a correction of the decision for those responsible, the public administrations to which the responsible persons are affiliated, and the public administrations within the scope of the general budget, for once within 15 days from the date of the written notification with the following reasons:

Claims and objections affecting the basis of the decision are not met in the decision.
There are contradictory decisions on the same subject in a decision.
The discovery of fraud and corruption in documents affecting the basis of the decision during the appeal review.
At least one of the reasons for appeal exists.

Requests and examinations for correcting decisions are carried out in the chamber of appeal forms and procedures. The Board of Appeal is bound by the reasons listed in the request for correction. The request for correcting a decision does not prevent the execution of the final decision. The decision is communicated to the relevant parties.

Other Issues Regarding Account Trials

Unification of case-law

While the nature of the work and the submitted documents are the same, if the writs prepared by the chambers or the Board of Appeals on the same subject are contradictory, the President of TCA sends these writs to the General Assembly for the unification of case-law.

The President of the TCA may also request a change in the unified case-law

The decisions to unify or amend the case-law are published in the Official Gazette. TCA chambers and boards, public administrations, and responsible persons are obliged to comply with these decisions.

Unification of Administrative Decisions

If there is a contradiction between the decisions of the chambers or two decisions of a chamber on the same issue, or if it is necessary to change a case-law, or if it is necessary to take decisions that can be applied to all transactions of this nature, the issue is discussed and resolved in the General Assembly and published in the Official Gazette. The Chief Prosecutor is also present at the discussion of this issue and declares his opinion. TCA departments and boards are obliged to comply with these decisions.

Conflict between the Decisions of the Council of State and the TCA

In conflicts between the final decisions of the Council of State and the TCA regarding taxes, similar financial obligations and duties, the relevant persons specified in Article 52 of the Law may apply for retrial in accordance with the principles and procedures regarding retrial. The TCA decision is discussed through retrial, and the dispute is resolved in line with the decision of the Council of State.

If the relevant persons specified in Article 52 apply to the Council of State against the TCA decision regarding the absence of a dispute, the decision of the Council of State prevails regarding this matter.

The execution of the TCA writ is suspended until it is determined that the conflict does not exist.